Guia para reclamar el IRPH

Reclamar IPRH

We collect the most relevant issues facing the IRPH claim on mortgage loans

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Summary: nature, abusiveness and claim IRPH

This article analyzes What is the IRPH, whether or not and when abusive character and how to claim. His goal is that if you are a consumer affected by this rate on their mortgage loans, know precisely what their rights and can successfully claim the IRPH.

As an introductory offer these strokes on the matter, to facilitate the reading of the future. We hope that at the end of the text you can assess whether or not you are interested in hiring a mortgage specialist right to study the corresponding claim.

The price of mortgage loans

The interest that determines the price of loans can be fixed or variable. When variable must refer to a indicator related to the price of money. Also, You may include a differential (positive negative).

As benchmarks Euribor or MIBOR often used, and IRPH is another of these indicators. It is applied whenever it is agreed that the mortgage deed. To be published by the Bank of Spain (BdE) from information collected by Banks and Savings is considered an official flag.

Is null IRPH?

The truth is the index itself is not null. As expected of any official indicator, It is perfectly legal, it is published by the BdE. At least I now understand the Supreme Court, although in its calculation certainly they come murky elements that will be discussed later. The question is at the expense of the decision of the Court of Justice of the European Union.

However, which may not be legal is the way many entities it traded. In this sense, when the entity did not inform the customer that supposed to use the IRPH as variable rate or how it was calculated that, it could be understood that he was acting improperly. In these cases would override clause IRPH not the index itself, but how placing.

Can I claim the IRPH?

Course, You can claim the IRPH. Throughout this guide we will explain why and under what legal arguments. However, the debate we have already noted in the previous section makes it advisable that if you choose to claim the interest paid has the support of a specialist in real estate law.

Do I have guaranteed success?

The success of the claim depends on the individual case. That's why we emphasize the need to go to a specialist who can analyze their situation in accordance with the keys that we share with you in this document.

What do I get if I have success?

What you earn depends on the conditions under which sign your mortgage. the share of the loan is usually reduced, besides what has given back overpaid. Occasionally, this amount is several thousand euros, while in other cases are tens of thousands.

What is the IRPH

IRPH stands for Benchmark Index Mortgage Loan. As the name suggests, This index is used to determine the interests of such loans. It was a type widely used during the previous decade to two thousand and ten. According to the source consulted, mortgages formalized using this index ranges from over half a million and nearly one million.

Mortgages granted during this period tended to use the IRPH as an index update its variable interest rate. This was novel, for displaced other more common indicators such as Euribor or MIBOR.

The full name of this indicator is the "average rate of mortgage loans over three years, for purchase of private housing”.

The IRPH indices

The truth is that in speaking of this index can differentiate between one IRPH for Savings, one for Credit Institutions (Banks) and one for entities as a whole. The first two were eliminated at the end of 2013 in an attempt to bring transparency to the market, so the latter was created as a replacement and remains in effect today. Differentiation is relevant for the purposes of claim.

Regarding those loans that have a reference to a now extinct IRPH (Banks or), It remains to be seen how the entity has responded front of his disappearance. 15th additional provision of Law 14/2013, which it is what eliminated these indicators, He foresaw that should I replaced by the "replacement rate under the contract".

This replacement rate used to be the IRPH Banks, Boxes or entities or Euribor. It could also happen that the scriptures did not foresee an indicator of substitution, case in which credit institutions have tended to adopt two solutions:

  1. Apply the "average rate on mortgage loans over three years, for purchase of private housing, granted by credit institutions in Spain ", established in the Act 14/2013. This is the IRPH Entidades.
  2. Freeze the interest rate were applied at the time of the disappearance of the applicable index. This solution is harmful to the consumer, to the extent that their quotas were not reduced with falling interest rates post-crisis.

The procedural strategy to successfully claim the IRPH vary depending on the solution adopted by the credit institution. However, it is very likely that the two situations resulting abusive.

How to know if I have IRPH and what type

IRPH set out in the mortgage clause that regulates how to determine the variable rate of interests. How to detect the use of this indicator is simply to consult the mortgage deed.

Regarding the type of index, do not worry because the review clause with Name. For example, with the expression "IRPH BANKS" or "IRPH ENTITIES".

Features IRPH

A taking as baseline mortgage prices which has been marketed such loans, the rate was more stable than other indicators such as Euribor or MIBOR.

Financial institutions are concerned and much of this stability point, although they did not invest much effort to realize that resistance is superior regarding downs regarding increases. The consequence of this sales technique was very favorable to the small consumer argumentario, fearful of the risks.

Also, this increased resistance to the ups downs that led to the end IRPH generate higher rates than those derived from indexes like the Euribor.

The dark side of IRPH: who pulls the strings

So that at no time was the financial sector advertised their ability to manipulate IRPH. It was a communication from the Bank of Spain that put the issue in the spotlight, pushing many affected to go to court.

A fin de cuentas, the BdE did not check the accuracy of the statistical information provided by financial institutions, it was not public. Which can escamar to the consumer, it is precisely this information that depends on the price of your loan.

In any case, financial institutions managed to push the IRPH to the rise in a crisis scenario where the Euribor plummeted. Thereby exorbitantly they increased mortgage payments, preventing many borrowers could repay their loans. Which resulted in numerous foreclosures.

How to manipulate the IRPH

The system is not very complex. The most powerful financial institutions have proven to be able to force small raise their interest rates. As BDE determines the value of the IRPH performing an arithmetic mean, no matter the size of the Bank or Savings, because the result is an elevation of the general type.

In fact, the entity itself can be benefited when pushing rising interest rates. Although fewer customers capture, those who already have will have to pay more interest as a result of the lifting of the IRPH truculent.

To this must be added the distortion caused to the fees and expenses included in the calculation of the IRPH, as explained below.

IRPH and ground clause

To top, IRPH generally it used with clause floor, even more damaging to the client. However, the operation of both clauses is different, and it should not be confused. Inter alia, because the claim of each follows its own channels and procedural argumentaries.

As we have explained:

  • IRPH is a benchmark to update the variable part of the interest on the loan, determining the price of the mortgage.
  • Clause floor is a limit to this low interest rate. Namely, establishes a minimum below which can be reduced your reference rate, but not your interests.

Both clauses are abusively used by financial institutions to ensure their profits at the expense of the capital of its customers.

How calculated the IRPH

To calculate the IRPH must determine the average price of mortgage loans to three or more years. This is done from the data sent by banks to the Bank of Spain (BdE).

So the BdE receives the average rate of transactions applied by the entities and calculates the arithmetic mean. The result is published monthly indicator.

This means that the IRPH, which determines the price of loans, turn depends on the price of loans. The more charged banks, more you raise the index (no longer an average mortgage price).

The problems of the calculation method

The main problem of the calculation of this indicator is that the average is performed by the BdE unweighted arithmetic. Namely, that on the resulting type it has the same effect as the interest charged by a small entity by the giants of the sector.

On the other hand, each entity must declare to the Bank of Spain has applied the TAE. The APR is usually a more informative value than the interest rate that includes this plus costs and fees, throwing the actual price of the financial product.

As IRPH is calculated through the average SAD and not the TIN, its value includes costs and fees they are charging banks and savings banks. Namely, customers pay the fees and expenses of the entity plus a percentage of the same bonus that is camouflaged within the IRPH.

In other words, If your bank charges you more commissions will increase your APR, and thus the rise will force the IRPH, generating a feedback effect. It is the same as paying duplicate fees.

Offset the problem of TAE

El BdE, aware of this problem, He proposed in its Circular 5/1994, of 22 July, a negative differential is incorporated into the IRPH. The objective of this differential would absorb the feedback effect which causes include costs and fees in its calculation.

However, the real situation is that financial institutions do not usually include this differential negative. In fact, The most common include differential is positive.

To verify this end should consult your mortgage writing clause determining the variable portion of their interests.

The real case

Why is it so controversial this benchmark? As we anticipated, banks and savings banks went to middle class customers, with stable income and who would not risk their money.

The IRPH was an ideal bait to attract investments this profile. And its stability allowed financial institutions to sell it as a favorable factor to the interests of the client.

Course, It hid any reference to alternative indices or the method of calculating the own IRPH. So the result was hundreds of thousands of customers who did not know if the option was or was not profitable for them.

This commercial practice contravenes transparency standards legally enforceable before such operations. For example, It should have been offered the possibility of linking the interest rate Euribor, common rate on mortgage loans.

Does not seem coincidental that the Euribor hanging around negative values ​​come from 2008, Since the IRPH has remained in the environment 1,5 points more than one indicator. In fact, Some of the companies that froze the variable portion of their interests have been applying higher rates to the 3 %.

The consequence are loans that do not end up never paid and unpaid massive ending in foreclosure.

La abusividad del IRPH

In principle, It is understood that the clauses linking the interest of the loan to the IRPH are null, under the Directive 93/13/EEC. The main reason is the aforementioned handling capacity that financial institutions had on the evolution of the same.

On the other hand, to the position that this index is perfectly legitimate (position defended by our Supreme Court as discussed below) there is still an argument that says the abusiveness of these interests.

This argument is the lack of transparency with which financial products are traded linked to them. As we have explained, banks and savings banks did not explain to their clients how you would determine the variable part of their mortgage payments.

The position of the Judiciary

With the data that have been exposed on the table, should not wonder abundant litigation that gave rise to these clauses. Thousands of consumers went to court requesting:

  • The replacing IRPH by Euribor as a benchmark for calculating mortgage interest.
  • The such substitution retroactive, with the consequent return of the wrongly paid.

As happened also in the field of mortgage costs, each judicial seat was pronounced in one direction.

Arguments in favor of the nullity of abusiveness

Many judicial pronouncements understood that the clauses that referenced to the IRPH were nil by:

  • Lack of transparency.
  • Abusividad.

So a number of clauses were canceled by introducing an imbalance in business, to the bank. evidently, financial institutions positioned themselves against these pronouncements, recurriéndolos provided they could do.

Arguments against the annulment by abusiveness

The IRPH is an index defined in the aforementioned Act 14/2013. Therefore, neither the Law 7/1998, of 13 April, on General Conditions of Contract, neither Directive 93/13 allow a priori go to control transparency.

Y es que, As much as the reference to the IRPH be performed in a general condition of recruitment, both standards exclude from its scope as conditions reflecting provisions contained in the Act 14/2013.

Ultimately, transparency clause does not depend on its content, but whether the consumer was informed:

  • The importance of that clause as an essential condition of the contract.
  • The way of calculating the portion of variable interest.

Based on this argument, financial institutions said the IRPH was an official index and, as such, the consumer could know him and was aware of its importance.

Solution Supreme Court

Less than a year ago the issue reached the Supreme Court. This, in Case 14 December 2017 señaló que not enough to point the IRPH as an index for interest clause deemed null.

So he came to rest on the argumentario we have filed against the general nullity of the clause to conclude that "the mere reference to an official index does not imply lack of transparency”.

So, the Supreme Court concluded that the annulment of the clause had depended on the missing marketed transparency requirements due.

The particular vote

Esta STS 669/2017, of 14 December 2017, Nor it was peaceful. incorporates the individual opinion of HE. Sr. magistrate D. Francisco Javier Orduña Moreno, to which it acceded HE. Sr. magistrate D. Francisco Javier Arroyo Fiestas.

These Justices agree that control and transparency of LCGC Directive 93/13 / EEC does not apply to an official rate of the BdE. But believe that itself should apply to the use of the same, in relation to the duties of information the financial institution. And this should make it easier for your client to understand the economic consequences of the use of the official rate chosen.

Namely, not enough that the consumer knows that the interest will fluctuate, but must know precisely in what way, and get a true picture of the economic consequences that this mode change will have on the price of the business.

Put simply, Judges argue that not enough to point an official index to withstand a transparency, but must explain comprehensibly. Namely, that control of transparency does not apply to the index itself but its use in shaping the contract.

And it is that the judgment does not require professional predisposing provide more information about using the IRPH. The result is a insufficient application of protection under proper control of transparency.

The response of the European Union

As expected, the matter reached the Court of Justice of the European Union (TJUE). This admissible admitted last 20 February preliminary consultation of thousands of lawyers and consumers are pending at present.

The European Commission, however, It has already expressed support for consumers, No. opposed to STS 669/2017. In its report she recalled the duty of the Powers Spaniards to analyze the transparency of the conditions of the contract, in accordance with Directive 93/13.

Y es que the Commission considers that omitting information on how to determine the IRPH is a deceptive practice. Ultimately, although the ball is now on the roof of the CJEU, the European Commission stressed that:

  • If the duty of transparency arising from the Directive applies 93/13. This makes the financial institution should properly inform their customers. Inter alia, It should provide a comparison with other indices, and the evolution of these in time.
  • omit information on the composition of the reference rate can be considered misleading.
  • It is for the national court consider whether there has been transparency in recruitment and, otherwise, assess the eventual survival of the contract.
  • If the contract can not subsist, damaging the interests of the consumer, the judge must allow the consumer to request the subsistence of the same, agreeing a substitute index.

Claiming clauses IRPH

So things, in many law firms we have decided to offer our customers the opportunity to claim their IRPH. Even if, As we detailed, the question is not easy to solve, there are certain strategies that allow procedural success rate.

1. What I can claim to challenge the IRPH

As an indicator sets the variable rate, The first consequence of the annulment is that you need to use another index, not unreasonable. It is customary to resort to the Euribor, as it should have been done from the beginning.

A the reference been annulled this abusiveness, the effects of the annulment must be traced back to the time that was imposed. Namely, must be recalculating the entire table amortization loan. This will have the expected effect of reducing interest rates, This has two consequences:

  1. will allow recover money that has been paid more Until now. In fact, You could even request early repayment of the loan, if sufficient capital.
  2. It will reduce the interest rate applicable for the remaining time, de modo que reduce the value of quotas that they fit payable to repay the loan.

Note that since the end of 2008, IRPH has been at several points above the Euribor, standard reference index.

This indicator is so common that in many mortgages it is articulated as substitute of the IRPH. very beneficial aspect for the consumer who gets put in the place of the IRPH, as it takes in negative rate since February 2016.

1.1. When writing does not provide a proxy indicator

But more often it is that writing your loan includes a proxy indicator (as we say, Very often it is the Euribor), It could happen not to rule to respect.

In these situations could be considered the Cancellation of interest based on the following two arguments:

  1. The article 1755 of the Civil Code and the 315 of the Code of Eatingcio only when expressly state that payment of interest is agreed must be paid these.
  2. The article 6 Directive 93/13 / EEC It provides that unfair terms are not binding on consumers of the Member States, although contracts containing them remain mandatory in the rest.

The aim of the Directive is that national courts do not integrate contracts containing clauses void by abusiveness. For this, the contract must be able to survive without the clause extirpated. And our Civil Code provides that loans can not only survive without interest, but this is your original nature. However, They are abundant court decisions that consider the loan can not be without ordinary interest and agree to apply the Euribor plus a spread.

1.2. A more frequent case

As we say, the most common is that writing contains a replacement rate if the indicator is removed on which it bases its interests. However, may find that your mortgage determine the variable interest rate based on the IRPH ENTITIES and set as a proxy for the IRPH BANKS, or vice versa.

Case, which it is more frequent than that in which stipulated no substitute for the main indicator, It must be resolved in the same direction as the previous situation.

Namely, at the time of ring main type the replacement rate applies. But if this does not exist or is null will only be a solution: the combination of the art. 1755 CC and art. 6 Directive 93/13 / EEC makes us understand that the interests be canceled completely.

1.3. The common result of cases not operating a proxy indicator

Accordingly, when writing the mortgage does not indicate a proxy indicator to the IRPH and this is canceled by abusiveness, It should defend the cancellation of mortgage interest. If this claim had success:

  1. You could claim back everything that had paid over the loan in interest.
  2. You would not have to pay more interest, because its obligation to the credit institution would simply repay the money borrowed.

This is the consequence that the AP understood from Alava in its judgment of 10 March 2016:

F.D.º 3rd «[…]bis the third clause concerns the remuneration that the client must pay the bank for the loan, It must be classified as clause defining the main object of the contract, therefore, not worth the price control, we can only analyze the transparency control, comprising controlling inclusion, the information given to the customer, and control of comprehensibility, if he came to understand the content of the clause and what it means'.

F.D.º 5th «[…] Now, the clause can not pass the filter of transparency, he joined the contract without the bank will ensure that the client understood its contents, without explaining how to determine this rate by the Bank of Spain or the differences between IRPH and other indexes, and its behavior in recent years. And what is more important, unable to choose between this index and others like the Euribor that were more advantageous for the customer […] Lack of transparency that the Board considered sufficient to declare the nullity of the clause […]».

For his part, the Report of the European Commission developed around the abusiveness of the IRPH chooses to offer professional and consumer a deadline for agreeing a substitute index. A lack of agreement, authorizes the national court to choose a replacement rate among those normally used.

In summary, the expected result is more substitution differential Euribor.

2. Analysis of the situation

The first thing to do is bring your mortgage writing to the lawyer to study unfair terms that affect you. This will determine the suitability of starting or not the claim. Also, will let you know how much money you overpaid.

To make this economic study is desirable to provide receipts for fees and mortgage amortization tables, you can ask your bank. You should be aware that may occur this claim even after winning your mortgage.

3. court settlement

As with any other claim, the first thing you do in these cases is They warn that the financial institution if it fails solution will begin legal action. The fastest solution for such situations usually be an extrajudicial negotiation.

As is not uncommon entity financial closing negotiations, the next step would file suit. So it is appropriate that while the court complaint you try to go collecting all additional documents.

In any case, You agree that any attempt to negotiate with financial institutions will attend a specialist in banking law.

4. Lawsuit

If the entity has refused to provide a satisfactory solution, will have to go to court. The demand must request:

  1. Invalidity of the clause IRPH.
  2. Returning the subscriber unduly interests in its concept.
  3. Update amortization table.

Note that the return of the unduly paid could result in the repayment of your mortgage loan.

5. The procedural strategy

Because the pronouncements of those who have so far, the safest way to claim the IRPH is to demonstrate the lack of transparency in the activities of the entity.

This implies that whoever has more guarantees when making these claims are Physical persons. And this is in line with the Supreme Court, that Judgment 367/2016, of 3 June, inter, recalls that transparency control is limited to consumers:

F.D.º 4th «[…] Neither the Community legislature, nor Spanish, They have taken the step of providing a special form of protection to the consumer non-adherent […] Not for the courts setting up a "tertium genus" that has not been established legislatively, Since it is not a loophole that has to meet by analogy, but a legislative option, for general contracting conditions, Acceding only difference between users and nonusers'.

Therefore, the claim for legal persons should be studied thoroughly by a strict banking lawyer skilled in the art.

Why hire a lawyer to claim the bank IRPH

Now that you know some depth how this index have noticed the technical expertise required to claim it. Hence It is advisable to hire a specialist in banking law, with relevant experience, to be able to overcome all difficulties and properly advise.

Also, mortgages affected by this indicator can also carry other unfair terms, as often it happens with clause floor and expenses clause. So a specialized professional mortgage law can analyze his writings and debug in the same demand.

Ultimately, and although the bulk of the matter is pending resolution by the CJEU, the Report of the Commission is in favor of declaring the abusiveness of clause, so it is a good time to claim the IRPH hand specialist.

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